Tuesday, July 31, 2012

Liu Deshan is out of a job after nearly 30 years as a judge in Henan province. In 2010, the provincial politico-legal committee (政法委) started investigating him for a sentence reduction he had approved six years earlier. The sentence reduction was for Bai Yugang. According to Xinhua, a sentence reduction led to Bai’s early release in December 2004, but Bai was arrested again in 2009 for additional crimes, including “organizing and leading a mafia-like organization,” during a nationwide crackdown on organized crime and illegal “cults.”

Defendants in the Bai Yugang trial make their final statements.
Source: Nanyang Intermediate People's Court

Investigation

According to the Southern Weekly report detailing his story, Liu Deshan was targeted after the Office of the National Coordinating Group for the Campaign to Crack Down on Organized Crime and Cults (全国打黑除恶专项斗争协调小组办公室) wrote in a report on Bai Yugang’s trial that “[Bai’s] protective umbrella has not been wiped out.” That report spurred the leaders of the Ministry of Public Security and the Office of the Central Committee for Comprehensive Management of Public Security (中央社会治安综合治理委员会办公室) to issue instructions to “actively correct” outstanding problems. These instructions prompted the provincial politico-legal committee to create a special group of 50 people to investigate.

The Southern Weekly report says that in the spring of 2010, Liu was investigated by the special group for eight days in a windowless room in a restaurant in Zhumadian city. He was then reportedly moved to another restaurant and held for 21 days under residential surveillance, where he was “deprived of sleep and seriously tortured.” On May 31, Liu was taken to a detention center where he would stay for 15 months before being released on bail.

Liu’s allegations—detailed in the Southern Weekly report—involve several procedural flaws and illegal practices. They also raise doubts about successful implementation of revisions to the Criminal Procedure Law, effective in 2013. For example, Article 121 of the revised law is meant to prevent the torture of people charged with “serious crimes” through the use of video and audio recording during interrogation. In 2006, the Supreme People’s Procuratorate released trial rules establishing synchronous audio and video recording for the interrogation of suspects in “duty crimes” (职务罪), which appear to have been loosely applied in Liu’s case. Discussing his experience during interrogation, Liu said: “It’s all an act. First they got me to totally submit … then they turned on the equipment to go through the formality.”

Trial

At the criminal tribunal of the people’s court in October 2010, the prosecutor claimed that Liu had violated an internal document of the provincial politico-legal system, which states that “in general, sentence reduction can only be given after the original sentence has been implemented for more than one and a half years.” In response, Liu argued that judges have discretionary power, and his decision was fully compliant with the Criminal Procedure Law and relevant judicial interpretations issued by the Supreme People’s Court.

Following a lengthy process of “internal instruction” that dragged on for nearly a year after his second court hearing, Liu received what he called a “flawed acquittal.” The verdict stated that though Liu’s conduct did not constitute a crime, he was “negligent” and “abused his power.” Despite his dissatisfaction with the verdict, the former judge believes that he is unlikely to win an appeal given the amount of high-level involvement in the case.

Emphasizing Severity

Liu’s career was apparently ruined for approving a sentence reduction that was in accordance with the law (as indicated by his acquittal) but out of step with a political campaign to “strike black and eliminate evil.” Although the Southern Weekly report does not provide details on Liu’s indictment or on the reasons for Bai’s sentence reduction, Liu may have found himself on the wrong side of the policy of combining leniency with severity (宽严相济).

Sentence reductions for people convicted of organized crime are to be “strictly handled,” according to Paragraph 34 of the Supreme People’s Court “Opinions on Implementing the Policy of Combining Leniency with Severity” (February 2010). Dui Hua has written about the opinion as a basis for leniency for juveniles and the elderly, but the list of people targeted for severity runs much longer. The first group named in Paragraph 34 is people convicted of “endangering state security” crimes, and thousands of political prisoners routinely face restricted access to sentence reduction and parole. For example, Dhondup Wangchen was sentenced to six years’ imprisonment for “inciting splittism” in 2009 and has been unable to obtain medical parole despite suffering from hepatitis B. Before his arrest, Wangchen produced a film in which he interviewed Tibetans about their lives under Chinese rule and their views on the then upcoming 2008 Olympics.

In this context, Liu’s case could be a warning that sentence reduction in sensitive, or potentially sensitive, cases is unacceptable regardless of procedural validity. Though found not guilty, Liu ultimately lost his job, demonstrating that Party discipline blocks the path to judicial independence with episodic crackdowns and politico-legal committees.

China released its second National Human Rights Action Plan (NHRAP) in June covering the period from 2012–2015. Compared with China’s first plan spanning 2009–2010, the new NHRAP signals a cooling of human rights exchanges with the United Nations and Western countries, a shift towards cooperation with developing nations, and little movement on ratification of the International Covenant on Civil and Political Rights (ICCPR).

UN, Organizational Relations Strained

China’s first NHRAP was issued during the last year of a three-year Memorandum of Understanding (MOU) on technical cooperation between the United Nations Office of the High Commissioner for Human Rights (OHCHR) and China’s Ministry of Foreign Affairs (MFA). China and the OHCHR signed their first MOU on technical cooperation in 2000, during a visit to Beijing by Mary Robinson, then High Commissioner for Human Rights. According to the MFA, successful cooperation led to the three-year MOU and an agreement to “carry out a range of cooperation programs in the areas of educating on human rights, enhancing capacity building and constructing a country governed by law.”

The 2009 NHRAP alludes to these MOUs by stating that “China continues technical cooperation” with the OHCHR, but this year’s plan replaces “technical cooperation” with “good cooperation.” The change reflects the expiry of the latest MOU and a lack of interest among both parties in renewal.

Although the MFA and OHCHR jointly held a seminar on the death penalty in December 2011—leading to an unrefuted estimate of the number of executions in China—senior Chinese diplomats have warned that future programs won’t take place until “finger pointing” and “confrontational attitudes” cease. Officials were alluding to statements issued by High Commissioner Navanethem Pillay and Special Procedures of the UN Human Rights Council since late 2011. Pillay condemned the sentencing of human rights defenders Liu Xianbin (刘贤斌), Chen Wei (陈卫), and Chen Xi (陈西); the revocation of Gao Zhisheng’s (高智晟) suspended sentence; and the disappearance of Chen Guangcheng (陈光诚)—when Chen was already in the US Embassy in Beijing—and wrote a letter to Tibetan hunger strikers camped outside UN headquarters in New York. The Special Procedures also issued statements highly critical of China’s human rights situation. For example, the Working Group on Enforced and Involuntary Disappearances stated that the “disappearance clauses” in China’s draft amended Criminal Procedure Law violate international law.

Although the Chinese government had previously indicated its willingness to host Pillay on a visit to China, by early 2012, enthusiasm waned. Chinese diplomats now indicate that an invitation will not be extended in the near future. Since the OHCHR was established in 1994, every high commissioner has made an official visit to China. In contrast, Pillay made official visits to all Perm Five and BRICS countries except China during her first term, and a visit to China is far from certain during her truncated second term. (China—along with other countries—refused to endorse the extension of Pillay’s mandate for four years and only agreed to an unprecedented two-year extension in May after strong lobbying by the South African government.)

Invitations for UN special rapporteurs (SR) also appear unlikely in the short term. In 2005, then SR on Torture Manfred Nowak conducted his mission to China, noting “widespread” torture and a “palpable level of fear.” Five years passed before China hosted its next, and seemingly less controversial, SR. The 2009 NHRAP states that China “considers inviting a special rapporteur,” and, in December 2010, SR on the Right to Food Olivier De Schutter conducted his mission. But while praising China for “lifting several hundred millions out of poverty,” De Schutter also mentioned Tibetan nomadic herders as a “vulnerable group” and recommended that China “suspend” their non-voluntary resettlement. Perhaps in light of the sensitive topics raised after the last two missions, China’s 2012 NHRAP does not specify how many SRs it will consider inviting, despite having about a dozen requests pending. Meanwhile, although the 2012 NHRAP does not alter China’s commitment to “answer letters” from Special Procedures, the information China provides is becoming more limited and polemical. China has also become more active in rejecting Special Procedures’ opinions on cases—such as the Working Group on Arbitrary Detention’s opinion on the case of Liu Xiaobo (刘晓波)—and seeking to have them overturned.

The 2012 NHRAP omits mention of exchanges and cooperation with international organizations. While much of the language on international exchange found in the 2012 NHRAP is clearly modeled after that of the 2009 plan, for reasons unclear, the following was not carried over: “China continues to strengthen exchanges and cooperation with the Food and Agriculture Organization (FAO) of the United Nations, the UN Educational, Scientific and Cultural Organization (UNESCO), World Health Organization (WHO), International Labor Organization and other relevant international organizations.”

Human Rights Dialogues

For human rights dialogues and exchanges, language in the 2012 plan strays from that of the 2009 NHRAP in two places. First, the word “bilateral” is removed as a descriptor for “dialogues and exchanges” that China continues to hold. Second, a sentence is added to include increased “consultation and cooperation with developing countries.” The 2012 NHRAP also adds mention of the Informal ASEM Seminar on Human Rights as an example of China’s continued participation in “the Asian-Pacific Region and Sub-region.”

Over the last two years, China has reduced the number of bilateral human rights dialogues and exchanges it holds with Western countries while decreasing the frequency and length of those conducted. China put an end to human rights talks with Norway—once considered among the best bilateral dialogues—because the Norwegian Nobel Committee awarded Liu Xiaobo the 2010 Nobel Peace Prize. China then cancelled the 2011 Sino-Australian dialogue apparently over Australia’s decision to host American marines at a base outside Darwin, and indefinitely terminated bilateral consultations with the Netherlands and Sweden. These decisions came after the Dutch foreign ministry awarded a human rights prize to Chinese lawyer and housing activist Ni Yulan (倪玉兰) and Sweden released a critical report on China’s human rights record.

The EU-China human rights dialogue has been reduced in frequency, at China’s insistence, from twice to once a year. As in other dialogues, China’s representatives resist accepting long lists of “cases of concern” and now give information on a relatively small number of the cases raised. Chinese representatives are also increasingly vocal in blasting the human rights records of their Western counterparts.

Selected Text from China’s National Human Rights Action Plans

Topic

2009-2010

2012-2015

Dialogue

Continues to hold bilateral dialogues and exchanges on human rights with various countries concerned on the basis of equality and mutual respect

Continues to hold dialogues and exchanges on human rights with various countries on the basis of equality and mutual respect. China also increases consultation and cooperation on human rights with developing countries

ICCPR

China … will continue legislative, judicial and administrative reforms to make domestic laws better linked with this Covenant, and prepare the ground for approval

China has continued to carry out administrative and judicial reforms and prepare the ground for approval

International Exchange

China continues to participate in human rights activities in the framework of the Asian-Pacific Region and Sub-region.

Continues to participate in human rights activities in the framework of the Asian-Pacific Region and Sub-region, including the Informal ASEM Seminar on Human Rights

International Organizations

Continues to strengthen exchanges and cooperation with the Food and Agriculture Organization (FAO) of the United Nations, the UN Educational, Scientific and Cultural Organization (UNESCO), World Health Organization (WHO), International Labor Organization (ILO) and other relevant international organizations

[no parallel statement]

Special Procedures

China continues its cooperation with the Special Procedures of the United Nations Human Rights Council, answers letters from it, and considers inviting a special rapporteur to visit China while taking into account the principle of balancing various human rights and China's reception abilities

China continues its cooperation with the Special Procedures of the United Nations Human Rights Council, answers letters from it, and considers inviting special reporters to visit China while taking into account the principle of balancing various human rights and China's reception abilities

UN OHCHR

Continues technical cooperation

Continues its good cooperation

Note: All bold text has been added for the purpose of comparison.

Since the mid-1990s, the Chinese government, sometimes through the China Society for Human Rights Studies (CSHRS), has discussed human rights with developing countries and former Eastern bloc countries. (Beijing has had a human rights dialogue with Hungary for more than 10 years, although little is known about the dialogue and issues discussed therein.) There was an uptick in Chinese human rights diplomacy with developing countries in 2012, with June visits by the CSHRS to Belarus—a country ostracized by the West for its poor human rights record—and by Premier Wen Jiabao to Chile—where the two sides agreed to “informal consultations and contacts on issues of human rights and the judiciary.”

China’s dissatisfaction with human rights exchanges with Western countries and the United Nations has been building most notably since the awarding of the Nobel Peace Prize to Liu Xiaobo, but internal factors appear to play an important role in the ongoing chill. A once-in-a-decade leadership change has begun, and China is struggling to present a smooth transition and downplay human rights abuses. Moreover, Vice President Xi Jinping, expected to be named secretary general of the Communist Party at the 18th Party Congress later this year, is no fan of China’s foreign critics. In 2009, he derided them as “foreigners, with full bellies, who have nothing better to do than to try to point fingers.” The 2012 NHRAP indicates that it may be some time, if ever, before China returns to the days when human rights exchanges with the UN and the West were an important feature of the country’s foreign policy.

ICCPR

Despite being a key goal of Chinese reformers and the international human rights community, ratification of the ICCPR is not a priority for the Chinese government. China signed the ICCPR in 1997 and is still committed to eventual ratification, but as a Chinese official told Dui Hua in March 2012: “There is no timetable for ratification.” (Until recently, Chinese diplomats confidently predicted that China would be quicker to ratify the ICCPR than the United States, suggesting that China would ratify before June 8, 2013.)

The ICCPR comes last on the list of international covenants mentioned in the 2012 action plan, which states: “China has continued to carry out administrative and judicial reforms and prepare the ground for approval.” This removes the legislative reference found in the 2009 NHRAP, which states that China “will make domestic laws better linked with the Covenant.”

Thursday, July 5, 2012

There is perhaps no better example of a public intellectual in China than He Weifang (贺卫方), professor of law at Peking University Law School and avid promoter of legal reform and judicial independence. In part two of a three-part translation of an interview He gave Xi’an newspaper China Business View, he discusses the role of lawyers in legal reform and the benefits judicial professionalization brings to the public. Click here to read part one of the translation on reform and professionalization and part two on the reformer’s need for resolve.

*Reform Itself Changes National Circumstances [Excerpt]China Business View, May 19, 2012
Interview with He Weifang

Lawyers Can Bring Public Discontent into the Realm of Rationality

CBV: Discuss the importance of civil society to reform.

He: Chinese society has never resolved the problem of the structure in the middle of society: besides the state, there are only individuals who are like a sheet of loose sand. For 2,000 years it’s been like this. So, we need to fight against these 2,000 years of history. We know that the bar in the UK is an extremely independent organization that experiences no interference from the state. On the contrary, they nibble away at state power. In the 17th and 18th centuries, British lawyers monopolized entry for judges and judges had to be reputable members of the legal profession. This meant that the strength of society had entered into state power and a portion of the power of the state had been transformed by the logic of society. In my view, this is what civil society is. When society is filled with a variety of forces, the state cannot do whatever it wants.

CBV: Lawyers play a very important role in the democratic process, as they can minimize the intensity of conflicts and promote moderate progress. But in practice, lawyers are less effective than hoped for and they are heavily restricted.

He: Lawyers as a profession have decided that they must struggle against public power. In today’s China, when we glance behind us we can see lawyers “banding together for support” and continually demonstrating their strength. Lawyers are determined to struggle against public power and think of ways to use norms to shape state power. But in another sense, they are also using norms to shape public sentiments and bring public discontent with the government into the realm of rationality so that it can be resolved reasonably. So, when ordinary people hire a lawyer to represent them in a lawsuit, the clearest symbolic significance is that they still respect the state. Can you still attack lawyers at that point? A history lesson from France teaches us that if you always attack lawyers, it forces lawyers to become the leaders of a great revolutionary era. Silver-tongued lawyers are good at argument at court and they can also be terrific at inciting people. Weren’t Danton and Robespierre both lawyers? So, I am always calling on officials both directly and indirectly to change their prejudices and stereotypes about lawyers.

CBV: Often during some high-profile individual cases the arguments that develop in public opinion and the media cannot be bridged, such as in the case of Li Changkui. What is the significance of a society’s culture to the law?

He: Some decisions are clearly unreasonable or, perhaps, flawed. Take the case of Li Changkui: sentenced to death by the court of first instance, the death sentence suspended on appeal. I felt the reasoning used by the appeal court to change the verdict was not convincing, but I said we should respect the court’s final judgment because we must support the determinacy and stability of judicial decisions. We cannot allow judicial decisions to be like baking a pie, because if decisions are not determinate, it means power is not determinate and we’ll forever live in a state of uncertainty. The security of a rule-of-law society relies to a great degree on the stability of judicial decisions. This is what we commonly refer to as the ultimate nature of judicial decisions.

Cicero said that extreme justice is extreme injustice. Humans cannot achieve absolutely perfect justice. [So] we [shouldn’t] concentrate the limited financial and human resources of the legal system on those errors that should not be corrected—that’s the primary lesson of the Li Changkui case. This kind of sense is what Chinese legal culture lacks most. I’ve been trying everything I can to use weibo [a Twitter-like service] and the Internet to express this kind of idea. I will continue to say that if ordinary people don’t understand a judge’s decision, it doesn’t mean it does not benefit them. On the contrary, the more one pursues professionalism, the more benefits it brings to ordinary people. Admittedly, ordinary people don’t really understand what [judges] are doing, but despite not understanding, these things are still valuable and must be subject to checks and balances from within the profession. Of course, what sort of force can constrain the actions of jurists? This requires a slow growth process for the legal profession, as well as rationalization of the legal profession’s internal mechanisms. I’ve discovered an interesting paradox: The more emphasis is placed on maximizing the value of one’s own industry, sometimes it actually brings the most benefits to ordinary people.

Monday, July 2, 2012

There is perhaps no better example of a public intellectual in China than He Weifang (贺卫方), professor of law at Peking University Law School and avid promoter of legal reform and judicial independence. In part two of a three-part translation of an interview He gave Xi’an newspaper China Business View, he discusses the need for resolve in the pursuit of legal reform. Click here to read part one of the translation on legal reform and judicial professionalization.

*Reform Itself Changes National Circumstances [Excerpt]China Business View, May 19, 2012
Interview with He Weifang

Steely Resolve Needed to Push Forward Reforms

CBV: There are many differences of opinion within academia about legal reform. Some scholars hope to find a safer path.

He: I always feel that sometimes you need to have a kind of steely resolve in order to push forward reforms. That is to say, when you push for reform in the correct direction, sometimes things might actually get worse for a while, rather than reform fixing everything all at once. So, you need to have a certain degree of patience with respect to reform. But these days there are many people without enough patience, people who think that they need to compromise and consider the degree to which [reform ideas] are acceptable to powerful departments and whether they have a way of backing down [from proposals]. I think that academics should remain loyal to truth and express their research outcomes in full; only then can official decision-making avoid being particularly confused with respect to logic and pace. Otherwise, reform cannot be successful. Of course, I personally believe that there should be a division of labor among scholars. I’m often criticized for being too idealistic and too much of a purist. Some say I should make some compromises and concessions and that one can only map out the path of reform in accordance with national circumstances. But I think that reform is about changing the national circumstances. Sometimes I think I have to express myself; if I can’t express myself, I’d rather not say anything at all.

CBV: In today’s discourse, on a certain level the opposite of reform has become a return to the “Cultural Revolution.” But it seems that contemporary intellectuals are also clearly divided and opposed on this question.

He: I can never understand why some intellectuals who themselves experienced the great calamity of the “Cultural Revolution” would say that we have to “see both good and bad” in the “Cultural Revolution.” And these people are very influential among university students. I think that perhaps you can find some kind of explanation if you analyze their psychology. For example, some of those who still sing the praises of the “Cultural Revolution” might be detached, like some overseas scholars. Or take Li Ao, who is very critical of the Kuomintang and Chiang Kai-shek because of the suffering he experienced but who has no painful experience of the “Cultural Revolution.” Perhaps there’s a difference between those who have personally experienced suffering and those who have not. It is even more impressive when a person who has not personally experienced suffering can understand that suffering and produce a good theoretical analysis of it. We say that the tragedy of the “Cultural Revolution” could reappear because we have never allowed younger citizens to see the truth about the “Cultural Revolution.” The Cultural Revolution museum that Ba Jin called for has still never been built. I feel we ought to reflect honestly on history and use tangible objects to tell each generation of citizens that our nation once experienced a decade of insanity. For example, Germans place extraordinary emphasis on reflecting on the Nazis. In the prime area next to the Brandenburg Gate there is there is actually a large spot devoted to a memorial for the Jews. People say now that “praising the Cultural Revolution” is free expression, but this is something that perplexes me a bit. It’s like the way that praise for the Nazis does not fall under the scope of free expression in Germany.

CBV: Intellectuals are a knowledge repository for society and continued speech is beneficial toward leading society in the correct direction. Can today’s intellectuals ever develop a group voice?

He: People who study the humanities and social sciences rarely ever join together, and it’s the characteristics of their profession that make them unwilling to join together. This is related to the special characteristics of the profession of intellectuals and scholars. Of course, intellectuals may to some degree discover the existence of certain [common] interests or enemies. For example, during the height of McCarthyism, American intellectuals sensed that this was a great threat to society and they joined together at the time to oppose it so that the height of McCarthyism did not last long. At the same time, this kind of opposition led intellectuals to feel that they were a unit or a group, but in reality it is difficult for intellectuals to exist as a “group.” It’s best when they debate each other, when there is free expression, and when everyone is trying to influence society and society makes certain choices.